Opinion
# 2019-040-006 Claim No. 131941 Motion No. M-92918
01-24-2019
Caption amended to reflect Claimant's name only. v. THE STATE OF NEW YORK
Alfred K. Lavery, Pro Se LETITIA JAMES Attorney General of the State of New York By: Anthony Rotondi, Esq., AAG
Synopsis
Pro se Claimant's Motion to Amend Claim denied as proposed Amended Claim not submitted with Motion as required by CPLR 3025(b).
Case information
| UID: | 2019-040-006 |
| Claimant(s): | ALFRED K. LAVERY |
| Claimant short name: | Caption amended to reflect Claimant's name only. |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | Caption amended to reflect the State of New York as the proper defendant. |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 131941 |
| Motion number(s): | M-92918 |
| Cross-motion number(s): | |
| Judge: | CHRISTOPHER J. McCARTHY |
| Claimant's attorney: | Alfred K. Lavery, Pro Se |
|---|---|
| Defendant's attorney: | LETITIA JAMES Attorney General of the State of New York By: Anthony Rotondi, Esq., AAG |
| Third-party defendant's attorney: | |
| Signature date: | January 24, 2019 |
| City: | Albany |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
For the reasons set forth below, the Motion of pro se Claimant, Alfred K. Lavery, to amend his Claim is denied. The remainder of the Motion, also, is denied.
This pro se Claim, which was filed in the office of the Clerk of the Court on September 4, 2018, alleges that employees of the Workers Compensation Board of the State of New York were negligent, and abused their discretion and power, among other wrongs, resulting in Claimant sustaining injuries (Claim, ¶¶ 2, 5). It is further alleged that the Claim accrued on August 22, 2018 (id., ¶ 4).
CPLR 3025(b) provides that a motion to amend a pleading "shall be accompanied by the proposed amended … pleading clearly showing the changes or additions to be made to the pleading." Claimant's Motion papers consist of a Notice of Motion to Amend Claim, an Affidavit of Service, and Exhibits. Claimant has not complied with CPLR 3025(b) as he has not included a proposed amended Claim. It appears that Claimant wishes to withdraw a cause of action seeking punitive damages. This can be accomplished by entering into a stipulation with Defense counsel and then filing the document with the Office of the Clerk of the Court. In addition, Claimant has exhibits annexed to his Motion which he wants to be included in the Claim, as he asserts they contain material facts. Exhibits that contain facts are best saved for trial when the parties attempt to establish the facts of the case. Assertions set forth in a claim are only allegations and do not establish anything on their own.
Claimant's Motion to amend is denied.
In his Notice of Motion, Claimant also states that he is seeking an Order to submit witness lists and allow Claimant and all witnesses to be deposed. The Court will conduct a preliminary conference with the parties, in due course, which will be scheduled by separate correspondence, to establish a discovery timetable to give the parties time to prepare for the trial of this matter (see CPLR § 3101; Uniform Rules for the Court of Claims § 206.10). The Court concludes that this portion of the Motion is premature and is, therefore, denied.
January 24, 2019
Albany, New York
CHRISTOPHER J. McCARTHY
Judge of the Court of Claims The following papers were read and considered by the Court on Claimant's Motion to amend the Claim: Papers Numbered Notice of Motion, Affidavit of Service, and Exhibits 1 Affirmation in Opposition 2 Claimant's Reply 3 Filed Papers: Claim, Answer